Many Employers Will Need to Reconsider Drug-Free Philosophies

Come January 1, 2020, just as some Illinois residents are taking their first lawful (at least under State law) puffs of marijuana or bites of a cannabis-infused gummy bear, many employers in the Land of Lincoln will likely be facing the ramifications of an even more dramatic change — their possible need to stop all forms of testing for marijuana use other than reasonable suspicion testing.

From that day forward, the Illinois Right to Privacy in the Workplace Act (RPWA) will prohibit most employers from discriminating against applicants and employees who use marijuana off premises during nonworking hours or when they are not on call. Combined with the effects of other provisions of the Cannabis Regulation and Tax Act (CRTA), it appears that Illinois employers will no longer be permitted to test most workers for marijuana use unless they can demonstrate at the time of the test that they reasonably suspected the worker was impaired at work or during work time.

Most (if not all) drug tests generally are unable to detect current marijuana impairment. At best, they detect marijuana used in the last several days or months. For this reason, employers will be prohibited from disciplining or firing for positive drug tests except for reasonable suspicion.

In light of these changes, Illinois employers should review their drug testing practices and policies with their lawyers to ensure compliance with the new law.

Among other things, Illinois employers should consider these changes:

Updating their testing policies to define clearly the circumstances that would support a “reasonable suspicion” of a worker’s current impairment to justify marijuana testing. The CRTA states, “An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others.”

Ensuring that their practices afford workers a reasonable opportunity to contest a determination that they are under the influence or impaired by cannabis.

Reviewing whether, and to what extent, their workforce continues to be subject to other forms of testing for marijuana as mandated by US Department of Transportation (USDOT) Federal Motor Carrier Safety Administration Drug and Alcohol Testing Regulations or other state and federal laws. The CRTA states that it will not interfere with any federal state, or local restrictions on employment, including the USDOT regulations 49 CFR 40.151(e) or impact an employer’s ability to comply with federal or State law or cause it to lose a federal or State contract or funding. The USDOT has announced that states’ passage of recreational and medical marijuana statutes will not change its application of the USDOT testing regulations in those states. It remains unacceptable for any safety-sensitive employee subject to drug testing under the USDOT drug testing regulations to use marijuana.

For employers with multi-state operations, assessing how their changes to testing practices in Illinois should affect their practices in other states where the laws may or may not be as permissive of marijuana use. As of this article, more than 33 other states already permit marijuana use for medicinal and/or recreational purposes, and each affords varying degrees of legal protections to workers who use marijuana outside of work. As these laws spread and community acceptance of marijuana use continues to rise, it’s likely that workplace drug testing will generate significantly more positive results for marijuana in the coming years.

In other words, there may be both legal and practical reasons for employers to change their testing and discipline practices around marijuana if they wish to remain both compliant and competitive for talent.

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